Opinion
Criminal No. 99-256-06.
July 8, 1999
ORDER AND MEMORANDUM ORDER
AND NOW, to wit, this 8th day of July, 1999, upon consideration of the Government's Appeal from Order of Magistrate Judge Charles B. Smith on Conflict of Interest of Counsel for Kenneth Spencer, treated by the Court as a Motion for Reconsideration, and the related submissions of the parties and following Oral Argument on June 17, 1999, IT IS ORDERED, for the reasons set forth in the following Memorandum, that (1) the Order of Magistrate Judge Charles B. Smith on Conflict of Interest of Counsel for Kenneth Spencer is REVERSED and (2) the Government's Motion to Recuse Defense Counsel Guy R. Sciolla, Esq. is GRANTED.
The government styled its application in the instant matter as an appeal under Federal Rule of Criminal Procedure 58(g)(2)(A). However, Rule 58, entitled "Procedures for Misdemeanors and Other Petty Offenses," is limited to proceedings concerning petty offenses as defined in 18 U.S.C. § 19 as to which the Court determines no sentence of imprisonment will actually be imposed in the event of conviction. Fed.R.Crim.P. 58(a). Thus, the government cannot "appeal" Magistrate Judge Smith's Order in this felony case under Rule 58. See United States v. Gioia, 853 F.Supp. 21, 25 (D.Mass. 1994) ("Rule 58(g)(2)(A) . . . is totally inapplicable to felony cases.").
The Court will treat the government's "appeal" as a motion for reconsideration of Magistrate Judge Smith's Order of June 3, 1999. See 28 U.S.C. § 636(b)(1)(A) (discussing authority of district court to review orders of magistrate judges); Local Rule of Criminal Procedure 50.2(IV)(a) (making § 636 applicable to criminal proceedings).
MEMORANDUM
I. Facts and Procedural HistoryDefendant was indicted along with six alleged coconspirators on May 5, 1999. A Superseding Indictment charges defendant with possession of crack cocaine with intent to distribute, conspiracy, use of wires in a narcotics transaction, and aiding and abetting.
Two unindicted coconspirators in this case, Concepcion Estevez and Omar DeJesus Delgado, are or have at one time been represented by defendant's counsel, Guy Sciolla, Esq., in other criminal matters currently ongoing in this district. Both individuals are cooperating with the government in this case, and, according to the government, they will testify at the trial in this case. Mr Delgado, now represented by Michael Holston, Esq., has yet to go to trial in the unrelated case, and Mr. Estevez, still represented by Mr. Sciolla, is awaiting sentencing, which has been continued until he has completed his cooperation with the government in this case and other cases. On two occasions the government advised Mr. Sciolla of the potential conflict of interest.
On May 18, 1999, the government filed a motion to recuse Mr. Sciolla from representing defendant, arguing that the conflict between the interests of the defendant and the cooperating witnesses created a violation of defendant's right to conflict-free representation. Oral argument on the motion was held before Magistrate Judge Smith on May 20, 1999. In a June 3, 1999 Order, Magistrate Judge Smith denied the government's motion without prejudice. While recognizing the "potential conflict of interest" in this case, Magistrate Judge Smith denied the government's motion because "the United States Attorney has not yet determined that he will . . . be using either of [Mr. Sciolla]'s previous clients in prosecuting his case against defendant."
The government filed the instant "appeal" under Federal Rule of Criminal Procedure 58(g)(2)(A) on June 10, 1999. Defendant responded the same day by submitting a copy of defendant's response to the government's original motion. The Court held oral argument on the appeal on June 17, 1999, and the government supplemented the record with a transcript of the Grand Jury testimony of unindicted co-conspirator Omar DeJesus Delgado and an affidavit by Mr. Delgado in which he states that he refuses to waive any potential conflict of interest. The Court gave Mr. Sciolla the opportunity to respond to the government submissions, but no response has been received.
At oral argument, the government stated that Magistrate Judge Smith erred when he found that "the United States Attorney has not yet determined that he will . . . be using either of [Mr. Sciolla]'s previous clients in prosecuting his case against defendant." Quoting from it's brief on this issue, the government stated repeatedly that it "fully intends to rely at trial on testimony from [Estevez and Delgado]." Govt. Brief at 4, 5. In addition, the government argues that Mr. Delgado's refusal to waive any conflict is dispositive.
Defendant makes the following arguments: (1) the conflict is at best speculative because the government has not provided sufficient evidence that it will present testimony from the unindicted coconspirators; (2) counsel intends to admit the existence of the conspiracy, and will argue only the extent of the defendant's participation in the conspiracy, obviating any need to cross-examine the coconspirators on the issues implicating the scope of counsel's conflicting representation, and (3) defendant will waive any conflict presented.
II. Legal Analysis
A. Conflicts of Interest under the Sixth Amendment
The Sixth Amendment guarantees a criminal defendant counsel's "undivided loyalty free of conflict of interest." Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir. 1984). This requirement provides the minimum necessary to ensure that criminal defendants receive representation that "puts the government to its proofs in an adversarial manner." United States v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991). When an attorney's representation is affected by conflicting interests, he "breaches the duty of loyalty, perhaps the most basic of counsel's duties."Strickland v. Washington, 466 U.S. 668, 692 (1984). In addition, "[t]o reach the level of constitutional ineffectiveness the conflict must cause some lapse in representation contrary to the defendant's interests but such lapse need not rise to the level of actual prejudice." United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988).
A criminal defendant's choice of counsel is entitled to great weight. Wheat v. United States, 486 U.S. 153 (1988). However, the potential for serious conflicts is a consideration of judicial administration that outweighs a defendant's right to counsel of choice. Id. at 163; United States v. Voight, 88 F.3d 1050, 1075 (3d Cir. 1996); Moscony, 927 F.2d at 750;Davis v. Stamler, 650 F.2d 477, 480 (3d Cir. 1981). In determining whether to disqualify counsel on conflict of interest grounds, the district court need not find an actual, existing conflict of interest. As the Supreme Court stated in Wheat, the Court
must recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.486 U.S at 164. "Not only when an actual conflict is found, but when there is a showing of a serious potential for conflict, the presumption in favor of a defendant's counsel of choice is overcome and the trial court may disqualify counsel and reject the defendant's waiver of conflict." Moscony, 927 F.2d at 750.
B. Waiver
Defendant, through counsel, has indicated his willingness to waive any conflict of interest. The Court, however, is not bound by defendant's waiver. "Not only when an actual conflict is found, but when there is a showing of a serious potential for conflict the presumption in favor of a defendant's counsel of choice is overcome and the trial court may disqualify counsel and reject the defendant's waiver of conflict." Moscony, 927 F.2d at 750 (internal citations omitted).
With respect to Mr. Delgado's stated refusal to waive the potential conflict, United States v. Arnold, 913 F.Supp. 348 (E.D.Pa. 1995) is instructive. In Arnold, a defendant and his exfiancee had consulted defendant's counsel at an early stage of a criminal case. Shortly thereafter the defendant's ex-fiancee began cooperating with the government. This created the possibility that defendant's counsel would have to choose between his obligation to the defendant to fully and vigorously cross-examine a government witness, defendant's ex-fiancee, and his obligation under the rules of professional conduct not to reveal information obtained from the ex-fiancee pursuant to the attorney-client relationship. Defendant agreed to waive the conflict of interest, but his ex-fiancee refused to do so. The government filed a motion to recuse defendant's counsel of choice.
In granting the government's motion, the court determined that the ex-fiancee would likely testify for the government as a cooperating witness and that her refusal to waive the conflict, and her likely assertion of attorney-client privilege during trial, precluded effective cross-examination by defense counsel. Thus, the court concluded that defendant's counsel had to be disqualified from the case notwithstanding defendant's waiver of the conflict. Id. at 350-351.
The Court agrees with the reasoning of the Arnold case. The waiver of the conflict by defendant is not dispositive.Moscony, 927 F.2d at 750. More importantly, the Court concludes that the Mr. Delgado's refusal to waive the conflict necessarily limits the ability of Mr. Sciolla to effectively cross-examine a key government witness in the case against the defendant.
C. Changing Tactics to Obviate the Conflict
As noted above, Mr. Sciolla contends that his trial strategy of admitting the existence of the conspiracy obviates any conflict. The court disagrees. In United States v. Calabria, 614 F.Supp. 187, 193 (E.D.Pa. 1985), Judge Bechtle addressed the inherent difficulties with this tactic:
This simply reverses the priorities that the attorney owes to his client because it puts the lawyer's concerns ahead of the defendant's needs and then shapes the defendant's needs to eliminate the attorney's problems created by a direct conflict of interest. The court must determine whether [defendant's] attorney can be independent without considering which trial tactic is defendant's best tactic. The court has neither the ability nor the authority to pick and choose which strategy is best or will be best in [defendant's] case. What the court is sure of, however, is that to have to give up before trial the major traditional strategy of impeaching a key prosecution witness in a criminal case simply because that witness was a former client is a very disturbing development. . . . All lawyers worth their salt know that as evidence develops at trial, trial strategies frequently emerge and change as a defense tracks the evidence offered against a defendant.
The Court agrees with Judge Bechtle's well-reasoned analysis. At this time it may appear to Mr. Sciolla that admission of the conspiracy is the best defense strategy. However, to deny the defendant the opportunity to put the government to it's proof on all elements of the crimes charged in the Superseding Indictment before the case has begun to unfold and the evidence develops places too great a strain on defendant's right to conflict-free representation.
D. Sentencing Guidelines
In addition to the tactical concerns raised by Judge Bechtle, the Court notes the potential conflict that may arise at defendant's sentencing. Mr. Sciolla represents that Mr. Delgado will testify about the conspiracy only; the potential witness will offer no testimony about the defendant's involvement in that conspiracy. Assuming arguendo the truth of this representation, should defendant be convicted, his sentence will be determined, in part, under United States Sentencing Guideline § 1B1.3(a)(1), which provides in pertinent part:
in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,
. . .
that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. . . .
U.S.S.G. § 1B1.3(a)(1)(B) (emphasis added). That guideline requires the Court, at sentencing of defendant in the event that he is convicted, to determine the overall scope of the conspiracy when deciding the extent of defendant's jointly undertaken criminal activity.
At sentencing, defendant may wish to rebut the government's contentions or evidence concerning the amount of narcotics involved in the conspiracy; permitting Mr. Sciolla to remain as defense counsel will deny defendant the opportunity to fully develop the record regarding the amount of drugs involved in the conspiracy, a result the Court cannot permit.
III. Conclusion
Based on the foregoing analysis, the Court reverses the Order of Magistrate Judge Smith, dated June 3, 1999, and grants the Government's Motion to Recuse Guy R. Sciolla as counsel for defendant Kenneth Spencer.